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American Freedom Defense Initiative v. Massachusetts Bay Transportation Authority

United States Court of Appeals, First Circuit

March 30, 2015

AMERICAN FREEDOM DEFENSE INITIATIVE; PAMELA GELLER; AND ROBERT SPENCER, Plaintiffs-Appellants,
v.
MASSACHUSETTS BAY TRANSPORTATION AUTHORITY; AND BEVERLY A. SCOTT, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS CHIEF EXECUTIVE OFFICER / GENERAL MANAGER OF THE MBTA, Defendants-Appellees

As corrected April 3, 2015.

Page 572

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS. Hon. Nathaniel M. Gorton, U.S. District Judge.

Robert Joseph Muise, with whom David Yerushalmi and American Freedom Law Center were on brief, for appellants.

Joseph D. Steinfield, with whom Jeffrey J. Pyle, Julia A. Brennan, and Prince Lobel Tye LLP were on brief, for appellees.

Before Lynch, Chief Judge, Stahl and Barron, Circuit Judges.

OPINION

Page 573

BARRON, Circuit Judge.

These consolidated appeals require us to decide whether the First Amendment permits the Massachusetts Bay Transportation Authority (" MBTA" ) to refuse to display a pair of paid, private advertisements on the trains, buses, and transit stations that the MBTA operates. Many circuits and district courts have addressed the First Amendment issues that public transit authority advertising policies raise. We set forth our approach most recently and

Page 574

most thoroughly in Ridley v. Massachusetts Bay Transportation Authority, 390 F.3d 65 (1st Cir. 2004).

In that case, we considered a free speech challenge to the same aspect of the MBTA's advertising policy at issue in these appeals: the restriction on the display of advertisements that " demean or disparage" individuals or groups. And, as in Ridley, we again conclude that this restriction does not violate the First Amendment, either on its face or as it was applied. We thus affirm the District Court, which reached that same conclusion with respect to the MBTA's refusal to run the two advertisements at issue here, each of which concerns a highly charged issue -- the Israeli-Palestinian conflict.

I.

The MBTA operates the public transit system in the greater Boston area. Through an advertising agent, the MBTA makes its buses, trains, and transit stations available for the display of advertisements by private parties. The MBTA accepts most advertisements only upon payment, though the MBTA apparently accepts some public service advertisements for no charge. But the key fact is that the MBTA will not run every advertisement it receives, even when the advertiser is willing to pay the going rate. Instead, each advertisement must conform to the MBTA's Advertising Program Guidelines.

Those Guidelines state that the MBTA's program objectives are maximizing revenue from both advertising and ridership; preserving a safe and orderly operation and a welcoming environment for riders; and avoiding the identification of the MBTA or the Commonwealth with the point of view of the advertisements or the advertisers. To further those ends, the Guidelines restrict what the advertisements may say. The Guidelines also set forth a procedure by which the MBTA may review proposed advertisements that might contain prohibited content. Under that procedure, the MBTA may suggest changes that would permit the advertisements to be accepted upon re-submission.

In these appeals, the parties dispute the lawfulness of the application of the Guidelines to bar two advertisements about the Israeli-Palestinian conflict. These advertisements were submitted by the American Freedom Defense Initiative (" AFDI" ), a non-profit advocacy organization dedicated to " freedom of speech . . . and individual rights."

AFDI offered to pay the MBTA to run the first of the advertisements in October 2013. But the actual roots of the dispute reach back somewhat earlier. Months before, the MBTA ran a different non-profit group's advertisement concerning the Israeli-Palestinian conflict. The message of that earlier advertisement was very different from the one in AFDI's advertisement. AFDI makes that fact a centerpiece of its First Amendment challenge.

The earlier advertisement was submitted in September 2013 by a group called the Committee for Peace in Israel and Palestine. The advertisement depicted four maps reflecting different points in time with the caption, " Palestinian Loss of Land - 1946 to 2010." The advertisement also contained bold text to the right of the maps stating that " 4.7 Million Palestinians are Classified by the U.N. as Refugees."

The MBTA accepted the advertisement, and it began to run for a fee in October 2013. After receiving complaints about the advertisement later that month, the MBTA briefly ceased displaying the advertisement. But, shortly thereafter, the MBTA re-posted the advertisement. The MBTA claimed that there had been a miscommunication

Page 575

between it and its advertising agent, but did not otherwise explain its decision either to pull the Committee for Peace advertisement or to re-post it.

Very soon after the MBTA announced it would re-post the Committee for Peace advertisement, AFDI submitted the first of the advertisements at issue in these appeals. This advertisement included, without attribution, a modified version of a quotation from the political theorist Ayn Rand.[1] The advertisement read as follows:

IN ANY WAR
BETWEEN THE
CIVILIZED MAN
AND THE SAVAGE,
SUPPORT THE
CIVILIZED MAN.
[#x2721] SUPPORT ISRAEL [#x2721]
DEFEAT JIHAD

AFDI asked the MBTA to display this ad in ten transit stations where the Committee for Peace advertisement also had been posted.

The MBTA applied the Guidelines' stated procedures for reviewing submitted advertisements. The MBTA, through its General Manager, defendant Beverly Scott, then rejected AFDI's submission. The MBTA concluded that AFDI's submission violated one of its Guidelines -- namely, the prohibition on " advertisement[s] contain[ing] material that demeans or disparages an individual or group of individuals." [2] Scott notified AFDI of the decision on November 4, 2013.[3] Two days later, AFDI brought suit in federal court. The suit alleged violations of the First and Fourteenth Amendments and sought a preliminary injunction ordering the MBTA to run the ad.

The District Court denied the preliminary injunction request on December 20, 2013. See Am. Freedom Def. Initiative v. Mass. Bay Transp. Auth. (" MBTA I" ), 989 F.Supp.2d 182 (D. Mass. 2013). The District Court agreed with AFDI " that the most reasonable interpretation of their advertisement is that they oppose acts of Islamic terrorism directed at Israel." Id. at 189. Nonetheless, the District Court concluded that the references to " jihad" and " savage[s]," taken together and considered in light of the reference to " war," could, as the MBTA argued, reasonably be construed to demean or disparage Muslims or Palestinians, rather than to take aim only at terrorist acts. Id. at 188. The District Court also concluded that even though the Committee for Peace advertisement " deeply offends [AFDI] and . . . other members of the community" and " portrays Israel in a negative light," that advertisement " does not do so in a way

Page 576

that violates the demeaning and disparaging guideline." Id. at 191. By contrast, the District Court explained, " labeling a member of a group 'a savage', as defendants not unreasonably believe is done by plaintiffs' advertisement, directly debases that person's dignity." Id.

The District Court expressed concern that the MBTA could use the guideline to strip messages of their effectiveness. But the District Court read this Court's decision in Ridley v. Massachusetts Bay Transportation Authority, 390 F.3d 65 (1st Cir. 2004), to require the conclusion that, in this context, advertisers " do not have the right to use whatever terms they wish to use . . . simply because they are the most effective means of expressing their message." MBTA I, 989 F.Supp.2d at 190.

Two weeks later, AFDI submitted a revised version of its proposed advertisement. This second submission read as follows:

IN ANY WAR BETWEEN THE CIVILIZED MAN AND THOSE ENGAGED IN SAVAGE ACTS,
SUPPORT THE CIVILIZED MAN.
DEFEAT VIOLENT JIHAD
[#x2721] SUPPORT ISRAEL [#x2721]

Unlike AFDI's first ad, this second submission referred to " violent jihad" instead of merely " jihad." In addition, the second version's " defeat" clause preceded its " support" clause. In the first AFDI advertisement, by contrast, the two clauses appeared in the opposite order. Finally, and most crucially given the District Court's opinion in MBTA I, AFDI's second version changed the language at the beginning of the advertisement. The new language juxtaposed " the civilized man" with " those engaged in savage acts" rather than with " the savage," as had been the case in the first version.

The MBTA accepted AFDI's second submission and requested specifications so that the advertisement could be displayed within a week of its submission. But AFDI chose not to have the MBTA run this second version. Instead, AFDI submitted a new version the day after learning the MBTA had accepted its second submission.

This third advertisement, which AFDI claimed was merely a " tweak[ed]" version of the accepted submission, read as follows:

IN ANY WAR BETWEEN THE CIVILIZED MAN AND THE SAVAGE,
SUPPORT THE CIVILIZED MAN.
DEFEAT VIOLENT JIHAD
[#x2721] SUPPORT ISRAEL [#x2721]

This third version maintained the second version's reference to " violent jihad" (as opposed to merely " jihad," as in AFDI's first ad). The " defeat" and " support" clauses also appeared in the same order as they had in the second ad -- and thus, once again, in the opposite order from how they had appeared in the first ad. But unlike the second ad, which had been accepted, the third version returned to the juxtaposition that had appeared in the initial, rejected version. The revised language once again counterposed " the civilized man" and " the savage" rather than " the civilized man" and " those engaged in savage acts."

The MBTA rejected AFDI's third submission. The MBTA concluded that, like AFDI's first submission, the third ad violated the guideline that prohibits advertisements

Page 577

containing material demeaning or disparaging individuals or groups. AFDI then again brought suit, seeking another preliminary injunction.

The District Court denied the motion " on the grounds previously set out in its opinion in" MBTA I. Am. Freedom Def. Initiative v. Mass. Bay Transp. Auth. (" MBTA II" ), No. 1:14-cv-10292-NMG, 2014 WL 1093138, at *3 (D. Mass. Mar. 17, 2014). In addition, the District Court charged AFDI with " blatant gamesmanship" -- submitting this third version instead of having the MBTA run the second one -- and noted that this " bad faith" was an independent ground for denying the requested equitable relief. Id.

After AFDI timely appealed both decisions, the parties agreed to consolidate the two cases, given their common issues of fact and law and that the appeals involve the same parties. AFDI advances three basic contentions on appeal.

AFDI argues first that the MBTA has so opened up its buses, trains, and transit stations to private advertisements that the MBTA has effectively established what is known as a designated public forum. See Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45-46, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983). For that reason, AFDI argues, the MBTA may regulate the content of advertisements only through restrictions that are narrowly tailored to serve a compelling interest. See Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 469-70, 129 S.Ct. 1125, 172 L.Ed.2d 853 (2009) (designated public fora " are subject to the same strict scrutiny as restrictions in a traditional public forum" ). Further, AFDI argues that, under that strict standard, the MBTA cannot justify the content-based decision to reject the advertisements at issue here.

AFDI next argues that, even if the MBTA has not established a designated public forum and instead is operating only what is known as a nonpublic forum, the MBTA's guideline prohibiting the display of an advertisement that " demeans or disparages" individuals or groups is still facially unconstitutional. And that, AFDI says, is for either of two reasons. AFDI argues that the MBTA's guideline necessarily discriminates on the basis of an advertisement's viewpoint. See Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 806, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985) (explaining that speech restrictions in nonpublic fora must be viewpoint neutral). And, alternatively, AFDI argues that the guideline is so vague that it confers too much un-cabined discretion on the MBTA to sort between permitted and prohibited ads. See Ridley, 390 F.3d at 93-95 (discussing the high bar vagueness challenges face in nonpublic forum context).

Finally, AFDI argues that even if its forum argument and facial challenges do not succeed, the MBTA still violated AFDI's First Amendment rights. AFDI contends that the MBTA's actual application of its guideline (especially given the MBTA's decision to run the Committee for Peace advertisement) was unconstitutional. Specifically, AFDI contends that the MBTA discriminated against the viewpoint expressed in the two rejected AFDI advertisements or, at least, acted unreasonably in denying those ads given the purposes of the MBTA's overall advertising policy.

We consider each of these arguments in turn. In doing so, we explain why, in light of our prior ruling in Ridley -- which, if not strictly controlling as to each issue, is instructive as to all -- we find none of these arguments persuasive.

II.

Before turning to the merits of AFDI's argument, we ...


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